By refusing to hear a group of same-sex marriage cases this week, the Supreme Court turned the spotlight away from itself, refocusing the fight for marriage equality on lower courts. Same-sex marriage cases that have been stalled in circuit courts as federal judges waited for the Supreme Court to show its hand are now once again the center of attention.
With the tacit blessing of the Supreme Court, same-sex marriage advocates are "‹already shifting gears to zero in on more-localized reform, and some are hoping to use the momentum from the Court's decision to jump-start the conversation about LGBT rights more generally.
When it chose not to review the cases Monday, the Supreme Court essentially opened the door for same-sex marriage in 11 new states. Although this means that there is still no national resolution on marriage, gay-rights advocates consider the Supreme Court's action on Monday a major victory. "This is an incredible watershed event," said Joshua Block, a staff lawyer at the American Civil Liberties Union. The Court could have sat on the petitions, keeping the temporary bans on same-sex marriage in place, he said, but by denying them outright, it "really took a huge, huge step forward for same-sex couples."
The decision has changed the landscape. While more than half of all the states allow or are on the brink of allowing same-sex marriage, the legal fight to bring in the remainder of the country now returns to state, district, and federal appeals courts.
Supreme Court justices "really sent an unmistakable signal that there is no reason for denying the freedom to marry and they're not gonna stand in the way," said Evan Wolfson, president of Freedom to Marry, a gay-rights advocacy group. That signal is directed in large part toward the lower courts: with the decision, justices are saying that lower courts don't have to wait for the the Supreme Court to weigh in before moving forward with gay marriage.
And advocates are looking to federal circuit courts to take the hint. Lower courts that were delaying action until the Supreme Court took a side now have their answer. "There's no longer any reason for circuits to say, 'Oh, we're following the Supreme Court's lead,' " said Block.
"The Supreme Court would not have done this if it didn't think that marriage in all 50 states is the ultimate endgame," the lawyer said. And with the playing field looking more and more favorable, the ACLU is ready to turn up the heat. "We're going fight for every single federal circuit to come out the right way and rule that these bans are unconstitutional," he said.
The fallout is already beginning to reach states that weren't directly affected by the Supreme Court's denial of appeals. On Monday, Missouri Attorney General Chris Koster said he wouldn't appeal a ruling that would make same-sex couples who were married elsewhere eligible for marriage benefits. And on Thursday, West Virginia Attorney General Patrick Morrisey said his state would clear the way for same-sex marriage even though he—like the large majority of West Virginians—does not support gay marriage. Both attorneys general cited the Supreme Court's Monday action in their reasoning.
A Wednesday back-and-forth between the U.S. Court of Appeals for the 9th Circuit and Supreme Court Justice Anthony Kennedy introduced a wrinkle into advocates' hopes of seeing the remaining federal courts topple one by one. After the 9th Circuit Court struck down bans in Idaho and Nevada that day, Idaho officials requested a stay to temporarily block marriages, and Justice Kennedy granted it.
But advocates aren't really worried about the stay. "My bet is that it's nothing more than a temporary speed bump," said Wolfson. "In the grand scheme of things, it didn't mean much of anything." Most likely, Justice Kennedy's emphasis on process drove him to temporarily block the Idaho marriages. "It could be that Justice Kennedy was bothered by the departure from normal procedures," said Block. "Not by the substance of the decision."
As the ACLU takes the legal fight to district and federal courts, Sarah Warbelow, legal director at the Human Rights Campaign, says her organization is using the opportunity to step back and examine the larger picture. "There's this vision out there that when marriage equality comes to a state, LGBT people are suddenly equal in the eyes of the law and that's the end of it," she said. In reality, they're faced with numerous other hurdles.
HRC wants to use the marriage momentum as a springboard to address other matters of equality in Washington and at the state level. Warbelow says that HRC is approaching members of Congress to talk about reforms to the Defense of Marriage Act and Social Security. For now, only same-sex couples who live in states with legal gay marriage can get certain benefits from Social Security—HRC wants to change the rules so that the Social Security Administration recognizes same-sex marriages that were performed legally, even if couples later move.
And some states that now have legal same-sex marriage don't have explicit laws that prohibit discrimination on the basis of sexual orientation, she says, so the organization is lobbying state legislatures for changes in state law.
In courthouses, statehouses, and Congress, gay-rights advocates have their work cut out for them. "To the extent that people thought we'd have a breather while everyone waits for the Supreme Court to rule," said Block, the Supreme Court has now "disabused us of that notion."
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